The United Nations Transitional Authority in Cambodia (UNTAC) issued warrants for
the arrest of seven Cambodian People's Armed Forces' (CPAF) soldiers for kidnaping
and murdering four FUNCINPEC officials in Battambang, the U.N. spokesman Eric Falt
reported Mar. 8.
UNTAC had given the State of Cambodia a deadline of noon Mar. 8 to arrest the suspects.
Failing this UNTAC would use its special powers of arrest, detention and prosecution,
which were introduced by UNTAC chief Yasushi Akashi on Jan. 7, and arrest the suspects
Recent events have brought the question of UNTAC's powers of arrest and prosecution
back into the limelight. In trying to exercise these powers-introduced to combat
the wave of political violence which since last November has plagued the country
and undermined the peace process-UNTAC has encountered hurdles.
The main problem, according to legal observers, is that UNTAC was using the courts
of the existing administrative structures to try suspects. They contend this is illogical
and say the special powers were called for because UNTAC could not trust the police
forces of factions to pursue offenders belonging to their own faction. The case of
a suspect "walking out" of a SOC police station after being arrested by
UNTAC and turned over to the SOC authorities was given as an example. Furthermore,
legal sources stated, UNTAC could not trust the authorities to instigate correct
legal proceedings in the unlikely event that the police would hold offenders long
enough for them to be brought before a court.
Despite the lack of confidence in the factions to conduct fairly these two initial
stages of the prosecution process, UNTAC still persisted in hearing cases in the
courts of the factions, sources noted.
To date all cases have taken place in the jurisdiction of the State of Cambodia.
The first case to be tried under Akashi's new directive was that of Em Chan, a SOC
policeman who allegedly killed a FUNCINPEC member. A SOC judge heard the charges
and allowed Chan to be remanded in custody. But according to a number of Western
and U.N. observers, there were moves by SOC authorities behind the scenes to interfere
with the judiciary.
The lack of cooperation became clear when UNTAC brought their second case to trial
Jan. 28. The case involved an NADK soldier, Than Thouen, who confessed to taking
part in the massacre of 14 ethnic Vietnamese at Phum Taches on Dec. 27.
UNTAC's prosecutor, Australian Mark Plunkett sought to charge Than with murder before
SOC Judge Um Sary. Sary, however, refused to hear the case. The public reason was
that there was a jurisdictional problem and that cases should be heard in the provinces
where they were committed. However, a number of Western observers stated that the
judge had been pressured by the SOC Minister of Justice Ouk Bun Choeun, a former
high ranking Khmer Rouge commander in Kratie province, and told not to hear the case.
Some observers speculated that the State of Cambodia was not prepared to set a precedent
with the confessed NADK murderer which could be used for the prosecution of the SOC
UNTAC Deputy Special Representative Behrooz Sadry said he had heard two versions
of what happened when UNTAC tried to bring the Khmer Rouge guerrilla before the court.
The first was that the judge was pressured into not hearing the case. "The other
version was that [the Minister of Justice] instructed the judge to follow the law
to the letter and, since it required that these people be tried in the jurisdiction
in which they belonged, the judge had no right to hear and continue hearing the case,"
Sadry said. He dismissed the conjecture that the jurisdictional issue was just a
smokescreen to block the path of justice. "As I said, the jurisdictional issue
is not set aside at all. If it is, then quite a few of our lawyers and their lawyers
are totally wasting their time," Sadry said, adding "That's how the whole
issue came to us for further discussion."
UNTAC was left with a problem. According to the criminal law for the transitional
period, which was introduced by the Supreme National Council on Sep. 10, a suspect
had to be brought before a court and charged within 48 hours of arrest. UNTAC found
itself in danger of breaching the provisions of the laws they had drafted themselves.
Akashi then had to introduce a second directive allowing suspects to be detained
until they could be brought before what was described as a "competent"
UNTAC now had two prisoners on its hands who were to remain in custody until a "competent"
court could be identified. Parallel to their discussions on the jurisdictional question,
UNTAC embarked on negotiations to determine who should preside over the cases in
the future. "It's a question of determining whether we should have judges that
are acceptable to all three factions or whether we should have so called non-Cambodian
resident judges (overseas Khmers) or international judges or whether we should merely
have advisors next to existing judges. These are the various scenarios that we are
discussing," Sadry said. He dismissed the contention that these discussions
indicated there was something amiss in using the SOC courts. These were still an
option, he insisted.
Other legal observers have argued that to try a SOC policeman for killing a FUNCINPEC
official in the SOC courts would be a travesty of justice. Like other State organs,
the division between party and state is almost non-existent, as the CPP posters on
the courthouse walls testify, sources stated. One observer asked, "How could
the wife of the FUNCINPEC official feel that justice is being done?"
UNTAC's Human Rights Component head Dennis McNamara confirmed that the independence
of the judiciary was a cause of concern. An independent judiciary is the basic tenet
of the rule of law, he said, acknowledging that UNTAC was faced with at least a strong
suspicion of judicial interference. "A legal mechanism is difficult to fit into
the chaotic political situation," McNamara admitted. "Trying to make the
Cambodian legal system work is a bit like building from the ground. But trying to
make it work is an absolutely vital human rights concern. You can't have a civil
society otherwise," he added. McNamara recalled that Akashi had introduced the
powers against a backdrop of Sihanouk threatening to withdraw cooperation from UNTAC.
"It was essential for Khmer confidence in the electoral process, to make the
population aware that there is accountability for officials who commit gross human
rights violations. It's also a deterrence factor," he said.
There were further questions raised as to whether the U.N. was sacrificing basic
standards in order to deal with the chaotic political situation. Plunkett felt strongly
on this issue. "In prosecuting offenders the U.N. must abide by its own requirement
of Article 14 of the International Bill of Rights which provides that all people
should be equal before the courts...and everybody should be entitled to an independent,
impartial tribunal established by the law. So we have to adhere to that requirement,"
the UNTAC prosecutor stated. It is questionable whether trying cases in the courts
of the existing administrative structures meets with these basic requirements, he
Sadry, however, had a different view. "I think that we should rationally bear
in mind that this is a way to assist the existing systems. It is not that we have
come here as marshals from another state to sort of bounce everybody around and arrest
everybody. It's because our colleagues noticed that the system was very slow or that
there was too slow a reaction to our requests for action on certain cases, so we
came up with a system to expedite the process." Sadry acknowledged that using
SOC judges in the cases so far was a cause of concern. "Don't misunderstand
me, it will worry a lot of people. If you have a judge from another faction, it will
worry a whole other group of people, if you have an international judge it will worry
another group of people. So every scenario that we pursue will worry some group or
other." Sadry went on to admit that the system was imperfect but was the best
possible given their mandate and the political situation. "I still haven't come
across a perfect system anywhere," he added.
Another area of concern raised by legal experts was the legal basis for the U.N.'s
decision to take on the powers of arrest and prosecution. Sadry felt that if people
were to persist in using the title "special prosecutor's office" UNTAC
could run into legal difficulties. "But in terms of the right of UNTAC to assume
authority for arrest and prosecution of individuals accused of serious human rights
violations, those fall under the direct control mechanism which is provided for in
the Paris Agreements," he said.
SOC spokesman Khieu Kanharith, however, confirmed that SOC lawyers had problems with
Akashi's directives. But Sadry thought that this was predictable. "If you give
those directives to 125 lawyers, they would probably come up with 125 different opinions,
so many for and so many against (their legality). So I am not disputing that Hun
Sen feels this way but so far he has not told us that. He has always said that even
though he may have questions, he was raising them in the spirit of cooperation with
FUNCINPEC's Sam Rainsy claimed that SOC was raising these legal objections in anticipation
of UNTAC's move to arrest the seven CPAF soldiers in Battambang. "SOC is very
worried that UNTAC is going to take strong measures so they have said that they would
not recognize what UNTAC is going to do, they would question the legality of the
measures," Rainsy stated.
When the deadline passed and UNTAC went to serve warrants on the CPAF suspects in
Battambang, it did not appear as if SOC was acting in the spirit of cooperation.
The suspects were nowhere to be found. The SOC prosecutor in Battambang was also
not around, despite the fact that the United Nations had asked to meet with him.
U.N. spokesman Eric Falt said the U.N. team believed the SOC prosecutor had gone
to Phnom Penh. "Unfortunately they told us they would cooperate and when we
got to Battambang, no one was there," Falt said. Although the suspects had fled,
Falt said, "SOC had never made it clear whether they oppose these moves on legal
grounds." Falt went on to say that UNTAC had done its job and it was now up
to SOC to "translate good intentions into good deeds."
Khieu Kanharith claimed that the SOC prosecutor had not avoided the UNTAC team. The
prosecutor was on his way back from Phnom Penh to Battambang but, as he was travelling
by car and the UNTAC team by plane, he had not yet arrived when the U.N. was looking
for him, Kanharith said. He went on to say he did not think that it was up to SOC
to pursue the missing suspects. "If UNTAC decides to go ahead without our prosecutor,
we already made clear instructions: don't interfere with UNTAC. We keep out, and
let UNTAC do it," he said. This didn't mean that SOC [was] being non-cooperative,
he claimed. "Don't say that we are not cooperating. When UNTAC asked to arrest,
we said 'okay', discuss with the prosecutor in Battambang, and give him all your
findings. You just don't say 'hey guy, go and arrest this man because I have the
proof.' It's not enough, you have to arrest a man on some points...in the framework
of law," Kanharith added.
Although in strict legal terms Kanharith's complaint has some credence, Falt said
there were problems with handing over all the evidence to the SOC authorities. The
problems once again stemmed from what McNamara described as trying to fit a legal
mechanism into a chaotic political situation. "We have doubts that the existing
administrative structure is going to use that evidence for good purpose. We will
work with them, we will explain the circumstantial evidence to them. But as far as
[witness] testimonies and statements are concerned, we are not going to share them,"
Falt said. The U.N. spokesman acknowledged the reason for this was to protect the
safety and identity of the witnesses.
Legal sources contend that by acting in such a manner, UNTAC cannot claim to be working
within the administrative structure. In this case, they say, UNTAC is act-ing as
a marshal and correctly so.
Sadry's concerns about the legality of UNTAC acting in a marshal-like manner have,
however, to a large extent been removed by a resolution of the U.N. Security Council
drafted in New York on March 8 while the events in Cambodia were unfolding. The resolution
demands that all Cambodian factions take the necessary measures to end the acts of
political violence and "urges all those parties to co-operate with the UNTAC
Special Prosecutor's Office in investigations of such acts." What's more, the
Security Council did use the specific title "Special Prosecutor's Office,"
and this should protect UNTAC's powers in the event of any forthcoming legal objections
from SOC or elsewhere, a U. N. official noted.
But even with possible legal objections out of the way, it remains to be seen whether
the U.N. can proceed with its prosecutions. "My earnest hope is that we would
reach conclusions and proceed with the trials. I won't even speak of future detainees
but at least the two we already have detained. I think that in all laws of fairness
we should try and expedite their trials as much as possible. But it cannot be at
the very high risk of having a bad trial either. So the answer is a definite yes,
I am hoping that very shortly we should be able to proceed," Sadry concluded.